Response to the European Commission Consultation on the Green Paper on Compensation for Victims of Crime (April 2002)
Publication date: 01 April 2002
The AIT (Alliance Internationale de Tourisme) and the FIA (Fédération Internationale de l'Automobile) and their affiliated members, national automobile and touring organisations represent more than 40 million citizens in the European Union and over 103 million worldwide. Providing advice to members who have been victims of crime is a major activity for some members who already have well established networks of call/rescue centres across the European Union set up for this and other purposes. For these reasons, we are happy to contribute to this consultation on compensation for victims of crime. We believe our experience and the nature of our activities put us in a position to make a valuable contribution to this debate as it develops over the near future.
Question 1: Should a Community initiative on state compensation to crime victims pursue the three objectives listed in Chapter 4.2? Are there other objectives that should be pursued as well?
We agree with the three objectives listed in chapter 4.2 and we would propose a fourth one consisting of creating the appropriate structure for providing the victim with the possibility of being put in touch with the offender in order to try to arrive at an agreement or settlement.
Question 2: What should be the eligibility criteria for types of crime and for types of injury covered by a minimum standard?
In principle, a minimum standard should be established for all criminal offences. Also there must be distinction made between a criminal offence which is covered by obligatory insurance and thus does not qualify for compensation by the state. The same would apply if it were covered by social insurance.
Concerning the eligibility criteria for types of injuries, we propose to divide them into physical injuries and mental injuries, introducing a minimum threshold for physical injuries and no threshold for mental injuries.
Question 3: Should the degree of proof required from an applicant for state compensation be included in a minimum standard?
We agree with the establishment of a minimum standard for the degree of proof required from an applicant for state compensation. It would be necessary to find a principle acceptable to all member States. The proof is an essential factor in determining the level of state compensation, the harmonisation of which is a key objective of the measures currently being consulted on by the Commission in this Green Paper. This would also provide a means of preventing or reducing the risk of abuse.
Question 4: Should immaterial damages be included in a minimum standard, and if yes, could a definition of such damages be included?
We understand that immaterial damages should be included in a minimum standard as they are a very important part of damages. About the definition of such damages, a better solution would be to take into account the following: "all non-physical damage that results in a reduced functioning of the victim now or in the future" (this generic definition includes mental suffering).
Question 5: Could compensation for permanent disability be defined for the purposes of a minimum standard?
It is difficult to define permanent disability for the purposes of a minimum standard (some of the compensation would have to be given as immaterial damages). Even so, we think that a minimum standard for permanent invalidity could be 5% of functional invalidity.
Question 6: Should a minimum standard allow for taking into account the victim’s financial situation, when determining the victim’s eligibility or when determining the amount of the compensation?
We must express our opposition to the idea of taking into account the victim’s financial situation as a criterion of eligibility. The victim’s financial situation is particular to each victim that has no relation with his right of access to state compensation. A minimum threshold should be introduced, however, but no a maximum threshold.
Question 7: How should the subsidiary character of state compensation, in relation to other sources of compensation to victims, be defined in a minimum standard?
We understand that the state should be liable as an alternative, only if the victim is unable to hold the offender liable for the damage. In this case the victim should prove that that action was unsuccessful within a period such as three months.
Question 8: What other sources of compensation should be deducted from state compensation?
According to the foundation of the state compensation we understand that private insurance should not be deducted from state compensation, as being a personal and prior option of the victim to make such subscriptions. In this way only the sources coming from the state -only social or comparable payments- should be deducted from the state compensation.
Question 9: Should a possibility for advance payment be included in a minimum standard?
Advance payments, if correctly regulated, with a specifying term in the minimum standard, should also be paid.
Question 10: Should criteria related to the victim’s behaviour in relation to the crime, to his or her involvement in criminal activity in general, or other considerations of justice or public policy, be included in a minimum standard?
When deciding upon compensation, the victim's behaviour in relation to the crime should be a factor of consideration. Violation of public order could be included as a ground for withholding compensation
Question 11: What other criteria, not covered in this paper, could be considered for inclusion in a minimum standard?
Other criteria for inclusion in a minimum standard could be to refuse compensation when the victim has not taken measures that the public interest would suggest as appropriate.
Question 12: Would a right for the cross-border victim to receive assistance from an authority in his or her Member State of residence when applying for state compensation from another Member State be an appropriate way of facilitating access to state compensation for cross-border victims?
It might be possible, taking on board the difficulties related to the differences between the various compensation schemes of the Member States, to link this answer to the system developed under the 4th Motor Insurance Directive whereby national bodies are instituted to assist the victims in the procedure of claiming and receiving compensation.
Question 13: Would a possibility for the victim to get state compensation in his or her Member State of residence as well in the Member State where the crime occurred be an appropriate way of facilitating access to state compensation for cross-border victims?
Although the possibility for the victim of getting state compensation in his/her Member State of residence as well as in the Member State where the crime occurred would be an appropriate way of facilitating access to state compensation for cross-border victims, the amount of the damage must be determined by factors related to the victim’s place of residence. Moreover, it is easier for the victim to hold his or her own state liable. A system of national bodies that offer the benefits, as expressed in paragraph 12, could be the solution.
Question 14: What solutions, other than those outlined in this paper, could be envisaged to facilitate access to state compensation for cross-border victims?
Any solution which facilitates the process of applying for state compensation. For example, creating special offices connected between the Member States for this kind of civil law service could be envisaged to facilitate access to state compensation for cross-border victims. This could also apply for paying the compensation, if any, to the victim and then reclaim it from the body in the country where the loss was caused (this is the system established under the 4th Motor Insurance Directive). There would of course have to be a safe guards set up to prevent a victim receiving double compensation.
Question 15: Should harmonised forms, possible to use when applying for state compensation in all Member States, be established?
Based on the argumentation of the previous question, the possibility to use harmonised forms when applying for state compensation in all Member States should be established.
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